contentious decisions are usually released in the final days of the term, justices sometimes reading their fiery dissents from the bench, and the 2017–2018 term ended with its share of high-profile five-to-four decisions on such hotly debated subjects as abortion and immigration.
When the justices had concluded their business—voting on the disposition of cases related to their recent decisions—Kennedy informed his shocked colleagues that he had decided to retire. He asked them to not tell anyone until two o’clock so he could speak with the president privately.
No one from the press noticed Kennedy’s arrival at the Executive Residence, which was chosen for the meeting because of its relative privacy. The Oval Office’s large bank of windows makes it a fishbowl for prying eyes. Kennedy and Trump chatted pleasantly for about twenty minutes until, feeling the time was right, the justice handed the president an envelope. Inside was a letter dated June 27, 2018, beginning, “My dear Mr. President,” a sign of the genuine “affinity,” as one observer put it, that the two men had for each other.1 The letter was Kennedy’s formal announcement of his resignation.
President Trump was surprised by Kennedy’s retirement but not unprepared. He had heard rumors the previous year that after more than forty years as a federal judge, Kennedy was thinking about a change. His judicial nominations team wanted to reassure the justice, without applying pressure, that his legacy would be in good hands if he retired. Kennedy was disliked by many conservatives for his opinions redefining marriage2 and upholding Roe v. Wade.3 But many conservatives simultaneously supported his approach to federalism and the First Amendment, particularly as it concerns free speech. The White House indicated to him that his record would be treated respectfully and that his successor’s confirmation battle would not be a referendum on his tenure. When the White House got word that Kennedy was displeased one of its nominees for an obscure federal court had called him a “judicial prostitute,” the nomination was allowed to expire.
The stature of a justice is measured not only by the influence of his legal opinions but also by the careers and reputations of the clerks he has handpicked and mentored. The White House had sought Kennedy’s opinion about his former clerks who were under consideration for the federal judiciary and had nominated several of them to prestigious appeals courts. Most flattering of all, Trump had chosen one of Kennedy’s star former clerks, Neil Gorsuch, to join him on the Supreme Court one year earlier.
In his letter to the president, Kennedy said that on July 31 he would assume “senior status,” a semi-retirement that would enable him to continue to serve in a reduced capacity in the lower federal courts, but his days on the high court would be over. Having informed the president privately of his retirement, Kennedy returned to the Supreme Court building, no one the wiser as to what had just taken place. The biggest secret in town had remained a secret until the end. Justice Kennedy was retiring on his terms. The news was then released, and it rocked Washington.
Conservatives were elated at the opportunity to replace Kennedy with another Trump appointee. When a group of Republican senators, including the majority leader, Mitch McConnell of Kentucky, heard the news at a lunch, they looked up at each other and smiled. Not only would this be an opportunity to strengthen the Court, but in a midterm election year, a nomination fight could excite conservative voters and remind them of the importance of keeping control of the Senate. Senator Grassley, already miked up for his weekly conference call with Iowa reporters, heard the news while on air. Afterward he told his staff, “I guess we’re going to do this.”
News of Kennedy’s retirement touched off a minor media maelstrom. “Abortion will be illegal in twenty states in 18 months,” CNN’s chief legal analyst, Jeffrey Toobin, tweeted.4 Other outlets entertained even crazier possibilities. The New York Times noted that Kennedy’s son worked for Deutsche Bank, the same bank that had provided the Trump organization more than one billion dollars in real estate loans.5 There was no reason to think that President Trump’s acquaintance with Kennedy’s son was nefarious, but the Times report launched all manner of conspiracy theories. Neera Tanden, the president of the influential liberal think tank Center for American Progress, tweeted, “Just to state this: Justice Kennedy’s son gave a billion dollar loan to Trump when no one would give him a dime, and Justice Kennedy